Salih v Emirates - [2020] NSWCA 215

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Salih v Emirates [2020] NSWCA 215
Hearing dates: 21 August 2020
Decision date: 10 September 2020
Before: Bell P at [1]
Gleeson JA at [2]
McCallum JA at [42]
Decision:
Summons seeking leave to appeal is dismissed with costs.

Catchwords:
APPEALS – leave – applicant injured thumb when opening overhead compartment on international airflight – whether occurrence of injury was an “accident” within meaning of Art 17, Montréal Convention 1999 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 9E – no question of principle – proposed appeal wholly concerned with factual findings – whether findings glaringly improbable – leave to appeal refused

Legislation Cited:
Civil Aviation (Carriers’ Liability) Act 1959 (Cth), ss 9B, 9E
District Court Act 1973 (NSW), s 127(2)(c)
The 1999 Montréal Convention, Arts 17

Cases Cited:
Air France v Saks (1985) 470 U.S. 392
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Di Falco v Emirates (No 2) [2019] VSC 654
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Lee v Lee [2019] HCA 28; (2019) 372 ALR 383
Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Salih v Emirates (No 2) [2019] NSWDC 715
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category: Principal judgment
Parties: Gul Salih (Appellant)
Emirates (Respondent)
Representation:
Counsel:
M Neil QC / C Stewart (Appellant)
D Stanton / E O’Neill (Respondent)
Solicitors:
AJB Stevens Lawyers (Appellant)
Norton White (Respondent)

File Number(s): 2019/383196
2020/156330
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWDC 715

Date of Decision:

27 November 2019

Before:

Dicker SC DCJ

File Number(s):

2019/383196

Judgment

BELL P: I agree with Gleeson JA.
GLEESON JA: The applicant, Mrs Gul Salih, injured her right thumb when opening an overhead compartment on an A380-800 aircraft whilst the cabin was in near darkness, during an international flight from Dubai to Sydney departing on 30 October 2016. She sued the respondent, Emirates, as the operator of the aircraft for damages alleged to have been suffered by her. Her claim in the District Court was brought under s 9E of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (the Carriers’ Act) and relied on Art 17.1 of the 1999 Montréal Convention. It is common ground that the Montréal Convention was the relevant international treaty applicable to the Emirates flight that Mrs Salih boarded in Dubai, being an international flight from the United Arab Emirates to Australia. The Convention had the force of law in Australia in relation to any carriage by air to which the Convention applies, by reason of s 9B of the Carriers’ Act.
Section 9E of the Carriers’ Act substitutes a liability…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Salih v Emirates

Details

AGLC: Salih v Emirates [2020] NSWCA 215
Case: [2020] NSWCA 215
Decision Date: 10 September 2020

CaseChat Overview and Summary

The applicant, Ms Salih, sought leave to appeal from a decision of the primary judge concerning her claim for damages against Emirates. Ms Salih sustained an injury to her thumb when opening an overhead compartment during an international flight operated by Emirates. The primary judge had dismissed her claim, finding that the occurrence of her injury did not constitute an "accident" for the purposes of Article 17 of the Montreal Convention 1999, as incorporated into Australian law by section 9E of the *Civil Aviation (Carriers’ Liability) Act 1959* (Cth).

The central legal issue before the Court of Appeal was whether the primary judge erred in finding that Ms Salih's injury was not caused by an "accident" within the meaning of Article 17 of the Montreal Convention. This required the court to consider the established legal principles for determining what constitutes an "accident" in the context of international air carriage, particularly whether the event was an "unexpected or unusual event or happening external to the passenger."

The Court of Appeal, comprising Bell P, Gleeson and McCallum JJA, concluded that there was no question of principle arising from the primary judge's decision. The proposed appeal was found to be wholly concerned with factual findings made by the primary judge, and it was not demonstrated that these findings were "glaringly improbable." Accordingly, the court determined that leave to appeal should not be granted.

The summons seeking leave to appeal was dismissed with costs.

Orders

Orders of the court

Summons seeking leave to appeal is dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Salih v Emirates [2020] NSWCA 215
Hearing dates:	21 August 2020
Decision date:	10 September 2020
Before:	Bell P at [1] Gleeson JA at [2] McCallum JA at [42]
Decision:	Summons seeking leave to appeal is dismissed with costs.
Catchwords:	APPEALS – leave – applicant injured thumb when opening overhead compartment on international airflight – whether occurrence of injury was an “accident” within meaning of Art 17, Montréal Convention 1999 – Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 9E – no question of principle – proposed appeal wholly concerned with factual findings – whether findings glaringly improbable – leave to appeal refused
Legislation Cited:	Civil Aviation (Carriers’ Liability) Act 1959 (Cth), ss 9B, 9E District Court Act 1973 (NSW), s 127(2)(c) The 1999 Montréal Convention, Arts 17
Cases Cited:	Air France v Saks (1985) 470 U.S. 392 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Di Falco v Emirates (No 2) [2019] VSC 654 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Lee v Lee [2019] HCA 28; (2019) 372 ALR 383 Povey v Qantas Airways Ltd (2005) 223 CLR 189; [2005] HCA 33 Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 Salih v Emirates (No 2) [2019] NSWDC 715 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category:	Principal judgment
Parties:	Gul Salih (Appellant) Emirates (Respondent)
Representation:	Counsel: M Neil QC / C Stewart (Appellant) D Stanton / E O’Neill (Respondent) Solicitors: AJB Stevens Lawyers (Appellant) Norton White (Respondent)
File Number(s):	2019/383196 2020/156330
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 715 Date of Decision: 27 November 2019 Before: Dicker SC DCJ File Number(s): 2019/383196